Inderjit Singh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1228/2018

[2019] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1228 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. On 15 November 2012, he came to Hong Kong as a visitor and was permitted to stay until 29 November 2012. He overstayed without permission of the Director. On 30 July 2013, he was arrested by police and was referred to the Immigration Department for investigation. On 1 August 2013, he made a non-refoulement claim.

3.He claimed that if he were to be returned to India, he would be harmed or killed by Balwinder Singh and his two sons for having a land dispute with them.

4.In his statements given to the Director and the Board, he said that his father had let a piece of land to his uncle Balwinder for farming. Balwinder farmed it with his two sons. At the end of the tenancy, Balwinder refused to return the land to his father. The village council and the police could not assist them. Balwinder and his sons together with four or five people had come to their residence and attacked them. The applicant’s mother was seriously injured with her arm being severed. The applicant had suffered cuts in his left arm, right legal and head. He had been to other places, but Balwinder could find him. He decided to come to Hong Kong.

The Director’s Decisions

5.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.By Notice of Decision dated 16 October 2015 (“the Director’s Decision”) and Notice of Further Decision dated 16 March 2017 (“the Director’s Further Decision”), collectively (“the Director’s Decisions”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board and attended a hearing before the Adjudicator on 16 May 2017.

8.By Decision dated 25 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.Having considered the evidence, the Adjudicator concluded at paragraphs 66 and 70 of the Board’s Decision:

“66.  On the totality of the evidence, the general credibility of the Claimant has been undermined to the extent that I am unable to give any weight to the Claimant’s evidence in relation to events which he claims to have witnessed before he left India.

70.  I am unable to attach any weight to the Claimant’s assertion of fact which amount to no more than hearsay or speculation which are not supported by any other credible evidence.”

Application for leave for judicial review

10.By Form 86 dated 29 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decision.

11.In his affirmation in support of his application dated 29 June 2018, the applicant set out the reasons in support of his application below:

(1)  he had never received any notice on BOR 2 risk and he did not appeal on this risk;

(2)  he did not understand why the Adjudicator had dealt with BOR 2 risk; and

(3)  the Director’s Decisions were not translated for him and they were not read back to him in his language.

DISCUSSION

The Direction’s Decisions

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

15.The applicant had appeared before me. He confirmed that he had no complaint against the Adjudicator. He was only not happy with his decision refusing his appeal.

16.Obviously, the applicant’s claim is fact sensitive. But the Adjudicator had decided that he could not attach any weight to the applicant’s evidence as to the fact of his claim.

17.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §14

“Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

18.Grounds (1) and (2) have no substance because the Adjudicator had explained them in the Board’s Decision. He had waited for the Director’s Further Decision before hearing the applicant so that all issues of appeal might be dealt with in one go. This was good case management.

19.Ground (3) does not assist the applicant because he had confirmed in the hearing that he understood the Director’s Decisions and the Board’s Decision. This is common sense. Otherwise, he has no reason to make this application.

20.I find that the applicant is unable to show that there is reasonable chance of success in his proposed judicial review.

CONCLUSION

21.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 27^th day of February 2019

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1